FTC Assesses Primary Purpose of Emails in CAN SPAM Enforcement

As most people know – either from professional or personal experience – the CAN SPAM Act requires companies who send commercial” email messages to give consumers an opportunity to opt-out of receiving those messages in the future. The opt-out requirement does not apply to transactional” messages, which generally facilitate an already agreed-upon transaction or update a customer about an ongoing transaction.

If a message contains more than one type of content, the primary purpose” of the email is the deciding factor. That’s a fuzzy concept and it depends on how a consumer views an email, but the FTC has stated that it considers two key factors in this analysis. A message will likely be deemed commercial if (1) the subject line would lead the recipient to think it’s a commercial message, or (2) if the bulk of the transactional or relationship part of the message doesn’t appear at the beginning.

Using these factors, marketers will often come up with subject lines that appear transactional and play around with how different types of content are presented in the email in order to avoid triggering the opt-out requirement. This week, the FTC announced a settlement with Experian over its email campaigns that demonstrates that the agency will look closely at emails that are purportedly transactional to make sure they aren’t actually commercial messages in disguise.

Some of the company’s emails told recipients that this email was sent because it contains important information about your account” and others reassured them that this is not a marketing email – you’re receiving this message to notify you of a recent change to your account.” Despite these statements, the FTC alleged that the emails were primarily designed to pitch new products or services – making the messages commercial – and that the emails did not include an unsubscribe link.

Samuel Levine, director of the FTC’s Bureau of Consumer Protection, said: You always have the right to unsubscribe from marketing messages, and the FTC takes enforcing that right seriously.” In addition to requiring Experian to comply with CAN SPAM, the proposed order requires them to pay a $650,000 penalty.

If you haven’t looked at your email marketing practices recently, now may be a good time to do that. In particular, make sure you’re careful about how you interpret what constitutes a transactional” message and how you determine the primary purpose” of an email. Regardless of how you present the email, if the primary purpose is commercial, you need to make sure that recipients have the ability to opt-out of receiving those messages.